Gravel pit plan spurs court case

Anchor Point neighbors fear aquifer, river will be damaged

Posted: Wednesday, April 06, 2005

By HAL SPENCEPeninsula Clarion

A group of Anchor Point residents, who say they have witnessed the serious impacts on drinking water supplies caused by gravel mining operations in their area, have filed a suit they hope will eventually stop another pit from starting up.

"We feel like we have no choice but to go forward with a lawsuit," said plaintiff Merriam Warrington. "Today we have excellent drinking water and excellent fishing. Once they're gone, they're gone. We don't feel like we can risk losing everything we value about this great neighborhood."

The suit was filed in Kenai Superior Court and names the Kenai Peninsula Borough as defendant. It challenges a series of decisions and rulings by the borough Planning Commission and Board of Adjustment.

Warrington and other neighbors first challenged the proposed pit two years ago following an April 28, 2003, decision by the Planning Commission granting a conditional land-use permit allowing land owners Cecil and Ina Jones to extract gravel. The aquifer beneath the proposed pit supplies water to adjoining properties and empties into the North Fork of the Anchor River, opponents said.

In September 2003, the Kenai Peninsula Borough Assembly, sitting as a Board of Adjustment, remanded the issue back to the Planning Commission, saying there was credible evidence that operating a pit under the conditions outlined in the permit was more likely than not to result in damage to the aquifer.

The Planning Commission later adopted what complainants say was a narrow interpretation of the borough land-use ordinance and again granted the permit.

In February of this year, the Board of Adjustment heard testimony regarding the issue again, including from the permit applicants, who argued that opponents had failed to present substantial and credible evidence that errors had been made in the application or that the aquifer would be negatively impacted.

Borough ordinance language simply requires mines to be operated "in a manner that minimizes disturbing an aquifer," and that such aquifers serving other properties not be negatively impacted.

In doing so, the board ignored evidence of negative impacts and chose to interpret the law "to constrain their ability to require more information about aquifer damage, or even to place more stringent conditions in the permit," plaintiffs' attorney Peter Van Tuyn said in a press release. Van Tuyn represents Warrington and five other neighbors of the proposed gravel pit.

"Working through the borough process has been a real eye-opener," co-plaintiff Connie Alderson commented in the press release. "Their interpretation of the ordinance is very scary."

A third plaintiff, Earl Breyfogle, said if the borough's hands are tied by ordinance language and must grant all permits that come its way, "there is not a property owner in the borough who is safe from gravel mines."

Opponents said they had exhausted all legal options short of superior court. Information about the suit and other gravel pit issues is available at www.amnwr.com/GravelPit, the plaintiff's Web site.

An effort to reach Cecil and Ina Jones for comment was unsuccessful. A phone message was not immediately returned.